Guyora Binder of Buffalo has published a new article on the widely misunderstood origin of the American felony murder rule in the Stanford Law Review. The following is an excerpt from the introduction:

Felony murder liability is one of the most persistently and widely criticized features of American criminal law. Much of the criticism is directed at a sweeping doctrine holding felons strictly liable for any death resulting from any felony. Many commentators and courts assert or assume that this harsh doctrine long prevailed as the common law rule in England, was received into American law upon independence, and remains the law except where modified by enlightened legislation or judicial decision.

Contemporary commentators continue to instruct lawyers and law students that England bequeathed America a sweeping default principle of strict liability for all deaths caused in all felonies. All of these texts imply that this harsh common law rule was incorporated into American law at independence, where it persists to this day, except where mitigated by judicial or legislative reforms. Similar accounts of the development of American felony murder rules appear in other treatises and texts, in court opinions, in scholarly articles, and in law review comments. Based on such accounts, critics attack modern rules as "anachronistic" legacies of a morally regressive age.

Yet none of these accounts manages to identify when this supposed common law rule of strict liability for all deaths resulting from felonies became the law in England. None identifies a single case in which it was applied in England before American independence. LaFave, for example, explains that as felonies proliferated, the English felony murder rule became broader in scope and harsher in effect, until it was finally thought necessary to restrict it. Yet he does not identify any examples of harsh applications of the rule. Indeed, he does not demonstrate that the rule was ever applied before it was thus "restricted." These accounts are equally hazy about early American law. None of them documents application of such a rule in colonial America, or in the early American republic. None of them troubles to show that such a rule ever led to the conviction of felons who had caused death truly accidentally, that is, without culpability.

In short, there is something suspicious about our received account of the origins of American felony murder rules. This Article vindicates such suspicion and exposes the harsh "common law" felony murder rule as a myth. It retraces the origins of American felony murder rules in order to reveal their modern, American, and legislative sources, the rationality of their original scope, and the fairness of their original application. It demonstrates that the draconian doctrine of strict liability for all deaths resulting from all felonies was never enacted into English law or received into American law. [Mark Godsey]